Illinois ERISA Lawyer Blog

Employees in Chicago with an employer-sponsored disability plan who had a claim denied often fear two things: what will they do if they do not get their benefits, what will they do for money until the insurer does pay? Disability cases can drag on, in some cases only being resolved several years after the insurer initially denied a claim. But even assuming your case goes to litigation in court, and you win your case, is merely paying you today what you should have received three years ago really adequate? Often the answer is: no. Courts may, in their discretion, award a prevailing plaintiff in an ERISA case prejudgment interest. A court in California recently did just that. Letvinuck v. Aetna Life Ins. Co., No. 06-2831 (C.D. Cal. Dec. 2, 2011). After Letvinuck successfully appealed her case to the Ninth Circuit, and obtained a reversal in her favor, she moved for prejudgment interest, and the District Court awarded it.

In the judicial circuit in which Illinois sits, the Seventh Circuit, a court presumes prejudgment interest is applicable. Fritcher v. Health Care Serv. Corp., 301 F.3d 811, 820 (7th Cir. 2002). But how much interest do you get? Generally, the court can award prejudgment interest for your losses. But that does not necessarily convert to the amount of interest you had to pay if you borrowed money to make ends meet. It is even more problematic when the plaintiff cannot document the amount of interest he or she actually paid. Sometimes courts will apply the post-judgment interest rate to prejudgment interest. The court can vary from that figure with a showing that the lost investment opportunity (i.e., the rate you could have earned had you invested the benefits) was higher than the statutory post-judgment interest rate. This, of course, raises the complexity of getting compensated for the time you were not paid. But when the compounded sum of past due benefits is a significant number, the mental gymnastics, number crunching, and math-letics may be worthwhile.

If you have a question about your rights and potential recoveries in ERISA litigation, consult an ERISA lawyer.

Employees who are participants in disability plans sponsored by Chicago area employers frequently call my office after receiving a letter denying a claim for benefits. Often times, the reason for the denial may have been a procedural error by the administrator, preventing it from giving you a "full and fair review", as required by ERISA. The denial letter must explain the reason for the denial, it must reference the specific plan provision upon which the denial is based, and it must describe any additional material or information you would need to submit in order to get the benefits. 29 C.F.R. § 2560.503-1(g)(1).

ERISA imposes a high standard of care upon fiduciaries that make decision on claims. Merely telling claimants they need to submit additional medical records will not typically meet this standard. But even where the administrator fails to meet this standard, the question may arise whether the claim was denied for lack of supporting evidence or not. Such was the case recently in Tortora v. SBC Communications, Inc., 2011 U.S. App. LEXIS 22407 (2d Cir. Nov. 3, 2011). Sedgwick, as claims administrator for SBC's disability plan, denied a claim and stated "You may also submit additional medical or vocational information, and any facts, data, questions or comments you deem appropriate for us to give your appeal proper consideration." The court held that language did not meet the standard imposed by ERISA because it did not provide proper notice of how to perfect the claim. However, according to the denial letter, the medical records submitted were not indicative of disability, so the error was harmless.

If you have received a letter denying your claim for benefits and have questions about whether the denial was proper, call an ERISA lawyer.

More and more frequently, employees in Chicago on long term disability through an employer-sponsored disability plan are facing benefit terminations for conditions such as Fibromyalgia and Chronic Fatigue Syndrome because of a so called "self reported symptoms" limitation in the long term disability policy. Insurers more frequently place these limiting clauses in disability policies, assuming they would dispose of all the Fibromyalgia and Chronic Fatigue Syndrome cases within 24 months. But not so fast. After withdrawing its opinion in Weitzenkamp v. Unum Life Insurance Co. of America, the Seventh Circuit Court of Appeals reissued an opinion, again ruling in favor of the claimant, but on different grounds. 2011 U.S. App. LEXIS 19283, 2011 WL 4375637 (7th Cir. Sept. 20, 2011).

I previously covered this opinion, and he suspicion for why the court may have withdrawn its opinion. This time, the Seventh Circuit held that although the limitation on self reported symptoms was a part of the plan, it did not apply in Weitzenkamp's case. The limitation in this policy could be construed one of two ways. Either a limitation that limit applicable to all disabilities where the disabling conditions are self-reported symptoms, as UNUM proposed, or as a limit on disabilities where the diagnosis of the condition is based primarily on self reporting of symptoms. The Seventh Circuit held that the latter construction was more reasonable. With every condition, it is not the condition itself that disables the person, but the pain, weakness, etc. associated therewith that renders the person disabled. To construe the limitation as UNUM suggested would literally cause every disabled person to have his or her benefits limited to 24 months pursuant to one of these clauses. Because in Weitzenkamp's case, the physicians had considered plenty of other data along with the self reported symptoms, the court held the limitation did not apply.

The lesson to be learned from Weitzenkamp is to make sure a doctor treating you for Fibromyalgia or Chronic Fatigue Syndrome runs appropriate tests to rule out other possibilities before diagnosing your condition. If the doctor does so, and your plan has a clause like the one in Weitzenkamp, you may be able to avoid application of such a limitation. If you have questions about a self-reported symptoms limitation, speak with a knowledgeable ERISA attorney.

Employees and executives in Chicago frequently want to know when a participant in an ERISA covered plan can recover attorney fees. ERISA does provide for fee shifting in litigation. ERISA § 502(g). However, these fees are only recoverable once they are incurred in litigation upon achieving "some degree of success on the merits." Hardt v. Reliance Standard Life Ins. Co., 130 S. Ct. 2149, 2152 (2010). This case changed the standard, where previously a claimant had to be a prevailing party. This gave long term disability insurers and plan administrators every incentive to withhold benefits, wait until a complaint was filed, and then just pay the claim--preventing the claimant from becoming a prevailing party. This precise strategy was demonstrated recently in Pakovich v. Verizon LTD Plan, No. 10-1889, Slip Op. (7th Cir. July 22, 2011).

In Pakovich, the claimant achieved a remand in court back to the administrator to make a determination on her benefits claim. Rather than make the determination on remand, the plan just did nothing. After several months, Pakovich filed another complaint in court seeking benefits due, arguing he claim was "deemed denied" because the plan did not render a decision on her claim within the time allowed by ERISA. Soon after filing the complaint, the plan paid all benefits due. The plan then moved to dismiss the case, arguing it was moot. The district court granted the motion, and denied any attorneys fees to Pakovich because she was not a prevailing party. Both parties appealed.

The Seventh Circuit Court of Appeals held the claim for benefits was moot, because the plan paid Pakovich all the benefits to which she was entitled. But the court also held the plan had to pay Pakovich's attorney fees. A contrary holding would permit "opportunistic plans [to] routinely delay deciding whether to pay benefit claims until participants and beneficiaries file suit, effectively requiring them to incur legal costs unrecoverable under ERISA § 502(g) in order to receive benefits to which they are legally entitled . . . . Such a barrier would contradict one of ERISA's primary policies, to protect 'the interests of participants in employee benefit plans and their beneficiaries . . . ." Id. at 9.

If you are a participant in an employer-sponsored employee benefit plan and the administrator or insurer is not responding to your claim for benefits, contact an experienced ERISA lawyer.

A recent ruling from the Seventh Circuit Court of Appeals in Chicago protected employees with conditions such as fibromyalgia or chronic fatigue syndrome who have an insurer deny benefits based on an exclusion that was not properly disclosed to the employee. Weitzenkamp v. UNUM Life Ins. Co., No. 10-3898, 2011 U.S. App. LEXIS 14180 (7th Cir. July 11, 2011). In this case, Weitzenkamp was diagnosed with fibromyalgia, chronic pain, anxiety, and depression. UNUM awarded her long term disability benefits. After two years of paying the benefits, however, UNUM cut off her payments, citing a clause in the policy that limits benefits paid because of a disability dependent on "self-reported symptoms." The problem was that UNUM also prepared a summary plan description of the plan, and referenced a two-year limitation on benefits in three separate locations (all referencing mental health), but the SPD never mentioned the self-reported symptoms limitation.

The Seventh Circuit Court of Appeals held that the failure to include this important limitation in the SPD was a violation of the part of ERISA that requires the SPD to disclose the material terms of the plan. ERISA § 102. Because UNUM did not disclose this critical limitation in the SPD it distributed to participants, the court held UNUM could not then rely on the limitation in order to terminate benefits. The court did grant a rehearing on this case, and we will track its progress.

If you are a participant in an employee benefit plan and the administrator or insurer denied or terminated your benefits based on a limitation or exclusion not previously disclosed to you, call an ERISA lawyer.

Employees in Chicago and the Midwest have mostly heard about insurance companies, especially ERISA long-term disability insurers, employing video surveillance when evaluating claims. Insurers have created this mass misconception that disability applicants get caught in the act of performing activities wildly inconsistent with the claimant's asserted limitations. But the truth is the insurers use the surveillance in many cases, and these so called "inconsistencies" are far more subtle than the insurers would have many believe.

In a recent case, Life Insurance Company of North America ("LINA") terminated the long-term disability benefits of a claimant because it captured her on video surveillance removing groceries from her trunk in September 2007, and during January 2008 walking with a cane and test-driving a vehicle. Hunter v. Life Ins. Co. of N. Am., No. 10-1244, 2011 U.S. App. LEXIS 13598, at *4-6 (6th Cir. Jun29, 2011). Hunter had been diagnosed with degenerative joint disease, degenerative arthritis, rheumatoid arthritis, osteoarthritis, scapular pain, fibromyalgia, spondylolithesis, and spinal stenosis. She had been a Revenue Cycle Manager at a hospital. Her long-term disability insurance policy defined "disabled" as "unable to perform all the material duties of . . . her regular occupation . . . ." Because LINA classified Hunter's job as sedentary, and viewed her doing things that it claimed were consistent with being able to do sedentary work, LINA terminated Hunter's benefits.

A district court upheld LINA's decision, but the Court of Appeals for the Sixth Circuit overruled the district court, and ordered LINA to pay the benefits. LINA never considered the description of Hunter's "regular occupation," and whether she could perform all the material duties of her regular occupation. Instead, it merely claimed she could do sedentary work. The Court of Appeals also found several other troubling indications of a conflict of interest in the record, and held that LINA had acted arbitrarily and capriciously in terminating Hunter's benefits.

If you have questions about insurers and video surveillance in connection with an application for long-term disability benefits, speak with an experienced ERISA lawyer today.

Employees in Chicago and the Midwest who are participants in plans maintained by associations finally have clarity about the required administrative claims process when seeking long-term disability benefits. Often association boards meet on set schedules, such as monthly or quarterly. The boards may have used these meetings in the past in order to make determinations on claims for benefits from plans established and maintained by the association. But a recent decision from the United States Court of Appeals for the Ninth Circuit may have changed that forever.

In Barboza v. California Association of Professional Firefighters, No. 09-16818, 2011 U.S. App. LEXIS 13341 (9th Cir. June 30, 2011), Barboza was a participant in a long-term disability plan maintained by the California Association of Professional Firefighters. Barboza filed his claim for disability benefits, but the association's board did not render a decision on the claim until its next scheduled quarterly meeting. In the meantime, Barboza filed a lawsuit in federal court, claiming he did not have to exhaust any administrative claims procedure because the plan did not make a determination on his benefit claim within the time prescribed in the regulations pursuant to 29 C.F.R. § 2560.503-1(l).

Plan administrators generally must make determinations on benefit claims within 60 days. Id. § 2560.503-1(i)(1)(i). Certain plans that have a committee or board of trustees can make general benefit determinations at regularly scheduled quarterly meetings. Id. § 2560.503-1(i)(1)(ii). Disability claims, however, must be resolved within 45 days instead of 60. Id. § 2560.503-1(i)(3)(i). But multiemployer disability plans may still make the determinations at quarterly meetings. Id. § 2560.503-1(i)(3)(ii). This seems straight-forward, but each rule is subject to exceptions, citing other provisions of the regulation. The plan in this case planned to avail itself of the quarterly meeting rule, but Barboza argued that rule is not available to the plan because it is not a multiemployer plan.

The Department of Labor submitted an amicus brief, arguing in favor of Barboza, and construed the regulation to preclude associations, even those with a committee or board of trustees, from making determinations on claims for disability benefits at quarterly meetings. The Court of Appeals agreed, and ruled that Barboza did not have to wait for the plan to make a determination on his claim for benefits, and could proceed to court after the plan failed to render a decision or request an extension within the 45-day period.

If you have a question about ERISA plan claims procedures, contact a knowledgeable ERISA lawyer.

Employees in Chicago and the Midwest often call my office and inquire about the "conflict of interest" in ERISA long-term disability cases. Few cases will be determined based on whether there is a conflict of interest, as insurers have become more clever at creating an appearance of there being no conflict of interest. But the best way to understand how the conflict applies in cases is to witness it changing the outcome of a case.

In 2008, the United States Supreme Court held that where an ERISA plan administrator (such as an insurance company) both evaluates and makes benefit determinations, and is the source of funding to pay the benefits, the administrator is under a structural conflict of interest that should be weighed in judicial review of whether the administrator abused its discretion. Metropolitan Life v. Glenn, 554 U.S. 105 (2008). That does not necessarily mean the abuse of discretion standard will not apply; it just means a reviewing court will consider that conflict of interest. But something more than just the existence of the structural conflict usually needs to be shown. A claimant needs to show what else the insurance company did that shows that conflict of interest altered the administrator's benefit determination. A perfect example of this was in a recent (unpublished) decision from the United States Court of Appeals for the Ninth Circuit.

In Letvinuck v. Aetna Life Insurance Co., Aetna was the administrator of the Boeing Company Employee Health and Welfare Benefit Plan, and also funded the long-term disability benefits. No. 10-55018 (9th Cir. June 22, 2011). Aetna gave no weight to the fact that the claimant had been awarded disability benefits by the Social Security Administration, and did not try to address why the ERISA benefits were not payable despite Social Security benefits being awarded. Next, Aetna failed to tell the claimant what else she would need to show in order to be approved for the benefits. The court called this failure to "engage in meaningful dialogue" with the claimant and failure to let her know what evidence the insurer required. Because the claimant could point to these facts, the court then gave weight to the conflict of interest, viewed the denial with skepticism, and ordered the insurer to pay the benefits.

If you still have questions about how a conflict of interest can affect your right to disability benefits, speak with an ERISA lawyer.

Crain's Chicago Business published an article today about Chicago-based ComPsych Corp. executing several new agreements worth tens of millions of dollars with employers nationwide to provide employee assistance programs ("EAPs"). The article references how during difficult economic times, employees utilize these programs more. There is a greater onset of alcohol or substance dependence. Likewise, these EAPs have expanded to include counseling for managing marital problems, stress and obesity. I highly praise these programs for helping employees manage difficult problems. However, a central purpose of these programs is still to help employers by mitigating the extent to which life's obstacles decrease employee productivity. While many of life's obstacles are of the sort that can and should be properly addressed with an EAP, often executives, professionals and other employees overlook the employer's disability insurance plan. Sometimes, an employee may be a better candidate for disability leave than for assistance under an EAP.

Employees are usually aware they have a disability insurance plan, but rarely know exactly what that insurance plan covers, in what circumstances, how much it pays, for how long, and what (if anything) is excluded. Disability plans typically will provide most income replacement while you are "totally disabled" (as defined in the policy) or "partially disabled" (if your plan or policy provides for partial disability--some do, and some do not). Partial disability benefits will apply where you work a reduced schedule because of the condition and earn less money. Depending on the policy language, the plan may then supplement some or all of your reduced earnings. Disability plans often require that you be under the care of a physician in order to receive benefits. They also usually contain some sort of a 24-month limitation on benefits paid where disability is due to a mental condition or disorder (e.g., depression).

Not all claims for disability benefits are as a result of a physical disability. Executives and professionals often face high-stress in their jobs, which adds a unique vocational and/or medical element to a disability claim. When adding in life's other obstacles to your already high-stress, high-demand job, an EAP program may be the right way to go. But if you feel like you need more relief, or perhaps cannot work (albeit temporarily), then maybe disability is right for you. If you want to know about your options and rights under your employer's disability plan, call a lawyer knowledgeable in ERISA.

Employees that participate in group health insurance or group disability insurance plans through their employers obtained another victory today. The United States Court of Appeals for the Ninth Circuit held that participants who bring claims under ERISA § 502(a)(1)(B) for benefits due under the terms of the employee benefit plan may sue the third party insurer--the insurance company from whom your employer buys insurance for the particular benefit plan--for those benefits.

In Cyr v. Reliance Standard Life Insurance Company, Ms. Cyr received disability benefits under the employer's disability insurance plan insured by Reliance Standard. She sued her employer, alleging it discriminated against her by paying her approximately half of what it paid male employees with similar qualifications. Cyr prevailed, and won a retroactive salary increase. She then demanded Reliance Standard increase her disability benefit payments to reflect the retroactive higher salary, but it refused. Cyr sued Reliance Standard for the increased benefits, but the insurance company was neither the plan, nor the plan administrator.

The District Court initially dismissed Cyr's case, following the precedent of previous Ninth Circuit caselaw which held only the employee benefit plan or the plan administrator could be proper defendants in an ERISA 502(a)(1)(B) lawsuit. The Court of Appeals initially affirmed that decision, but after rehearing the case en banc (i.e., before all the judges), it vacated its prior order and reversed the District Court's ruling.

The prior law limiting benefits claims to being brought against only the plan or the plan administrator is not supported by a reading of the statute. ERISA specifies who can bring a claim in § 502, but does not limit against whom a claim may be brought. Previously, the Supreme Court in Harris Trust and Savings Bank v. Salomon Smith Barney, Inc. held a participant may sue a non-fiduciary for "other appropriate equitable relief" under ERISA § 502(a)(3).

If you have any questions about who is supposed to pay your health insurance or disability insurance benefits, call an ERISA lawyer.

Employees in Chicago that are participants in any employee benefit plans should pay attention to the growing divide among Courts of Appeals over whether "satisfactory to us" is language in a plan sufficient to vest the plan administrator with discretion to interpret plan terms and make benefit determinations. When the administrator has such discretion, a court reviewing the administrator's decision will do so under an abuse of discretion standard--whether the decision was reasonable, not whether it was right.

The United States Court of Appeals for the Third Circuit joined the ranks of courts in holding such language requiring a participant to provide proof of a loss "satisfactory to us" does not confer discretion on the administrator of the plan. Viera v. Life Insurance Company of North America, No. 10-22810, Slip Op. at 19 (3d Cir. June 10, 2011). The Third Circuit joined the ranks of the Second, Seventh, and Ninth Circuits in holding that this sort of language does not clearly communicate to a participant that the plan administrator has discretion in administering the plan.

The Court of Appeals for the Seventh Circuit--located in Chicago--held this sort of language cannot vest the administrator with discretion back in 2005. Diaz v. Prudential Life Insurance Company of America, 424 F.3d 635, 637 (7th Cir. 2005). However, employees cannot take these holdings for granted. When there is a divide in courts of appeals such as the one present here, it is more likely the Supreme Court will allow an appeal in order to resolve the conflict.

If you have any questions about how a standard of review or a discretionary clause could impact your claim for benefits, consult a lawyer knowledgeable in ERISA.

Employees, executives and managers in Chicago and the Midwest receiving disability benefits from their employer's short-term or long-term disability insurance plan often express frustration with one common string attached to those benefits. They complain about how frequently they need to continue to see their doctor when clearly nothing is improving. This begs the question: why would a plan require somebody with a chronic disabling condition to so frequently visit the doctor, when it appears clear the condition is not improving. The reason is often two-fold. First, the plan might make that a condition of you receiving benefits. Second, the claims administrator will pounce on the first hint in the doctor's description of restrictions and limitations to terminate your benefits. There are several things you can do to protect yourself, though.

If you are commencing short-term disability, and expect it to run into a claim for long-term disability, or are receiving long-term disability and expect to need the benefits for quite some time, it would be wise to have somebody thoroughly review the terms of your plan and guide you through the process. Get on a recurring schedule of physician office visits rather than just going upon notice from the administrator that an updated report is necessary. Try to find a doctor that will be sympathetic to your condition, rather than trying to rid himself or herself of any paperwork associated with a disability claim.

You should not assume the administrator knows what it takes to do your job. The administrator will usually hire a vocational expert or vocational rehabilitation counselor, who will not investigate the demands of your job, but will take the title of your job, and look up the description of that job in the Department of Labor's Dictionary of Occupational Titles. This most often affects persons with high-stress positions in management roles. It is a good idea to gather information early in the process, perhaps from friendly co-workers, that describes what the duties of your job were.

A good ERISA lawyer can work with you through the process, rather than just once your benefits have been terminated, to minimize the risk of your benefits will be terminated, or get them reinstated as quickly as possible.

Workers in Illinois and the Midwest may be stunned in disbelief at the notion that payments to their children from the Social Security Administration could reduce the workers' benefits under a disability insurance policy. Most--if not all--long-term disability insurance plans provided through employment and covered by ERISA contain certain offsets. The plan will calculate the monthly benefit based upon a percentage of pre-disability earnings, but then reduce those benefits if the disabled participant receives any Social Security disability benefits. Many such plans will even provide the participant with all the necessary paperwork to apply for such benefits, and in some cases even a referral to an attorney who will handle the claim before the Social Security Administration.

After commencing payment of benefits to participants, some disability insurance plans have later demanded either a refund for overpayment of benefits on account of these offsets, or withhold future payments to make up for the supposed overpayment. How could a plan demand an offset for benefits paid to somebody else, though? The answer is that it depends on the language in the plan.

Several such disability plan participants recently experienced this in Schultz v. Aviall, Inc. Long Term Disability Plan, 2011 U.S. Dist. LEXIS 37125, at *10 (Apr. 4, 2011). In that case, the plan provided the monthly disability benefit could be reduced by several different types of "deductible sources of income", included amounts received by either the participant's spouse or children for "loss of time disability payments because of [the participant's] disability under [Social Security]". Id.

There, the claimants--suing on behalf of a class of similarly situated individuals and on their own behalf--argued that Social Security payments to the participant's children for the participants' disability did not constitute "loss of time" payments. The court, unfortunately, disagreed. If you have submitted a claim for disability benefits, or anticipate doing so, and need advice concerning whether there may be any offsets to your benefits, consult an ERISA lawyer.

Employees, executives and partners in Chicago may wonder how a clause in a health insurance plan or disability insurance plan may still contain a clause granting the insurance company discretion to construe the terms of the plan and make benefit determinations. As covered in a prior post, Illinois bans the use of such discretionary clauses in health insurance and disability plans. The catch, however, is that courts have held the insurance regulation banning such clauses--50 Ill. Admin. Code § 2001.3--only applies prospectively, that is to plans issued or renewed after July 1, 2005. Garvey v. Piper Rudnick LLP Long Term Disability Insurance Plan, 2011 U.S. Dist. LEXIS 31592, at *4 (March 25, 2011).

Determining whether an insurance plan was issued after the applicable date is easy. More difficult is determining when the plan has been renewed. One may be tempted to assume that the insurance policy renews every year. After all, employees must submit their elections for open enrollment every fall for the following calendar year. In practice, most health, accident, disability or term life insurance policies do renew every year. Whole life insurance policies, on the other hand, do not renew annually because they are longer duration contracts. But according to at least one federal judge in Chicago, the plan only renews if there is an amendment to the plan. Id. at *6-7. The court did not explicitly explain what would need to occur for such an amendment to take place, but apparently the disability policy in the Garvey case did not renew annually. The disability insurance plan was issued on January 1, 2001, and the court held it had not been renewed prior to the final denial of disability benefits on January 5, 2006. In at least what appeared to be a counter-intuitive holding, readers of the opinion can only be left wondering what the court would require to hold a policy renewal occurred.

If you have been denied disability or health insurance benefits and need assistance in determining whether the plan has an enforceable discretionary clause, consult a lawyer versed in ERISA.

Often, disabled employees and executives in Chicago and the Midwest call on a lawyer for help with a claim for disability benefits under a disability insurance policy provided by the employer. Nearly every claimant initially submits the claim himself. Only after being denied benefits does the claimant call a lawyer. Understandably, claimants are averse to paying an attorney fees to obtain benefits the claimant has a chance at obtaining on his own without engaging an attorney. Claimants commonly make one of two mistakes in the process, though.

The first mistake a claimant makes is waiting until after the final internal appeal has been denied to call a lawyer. Often claimants figure they will only need a lawyer if they have to file a claim in court. True, a claimant will be better served in court by engaging a lawyer than filing a complaint pro se, the odds of ultimately obtaining the benefits are dramatically higher when a lawyer is engaged earlier, during the administrative review process. After the final internal administrative appeal, no further documentation may be added to the claim file, dubbed the administrative record. 29 C.F.R. 2550.503-1(j)(3)-(5). Moreover, the time afforded for internal appeal will generally be 60 days. 29 C.F.R. 2550.503-1(h)(4). After a final denial, the plan will generally proscribe how much time a claimant has to file a complaint in court. Therefore, by the time the claimant calls the lawyer after the final appeal has been denied, the lawyer can add no additional supporting evidence, and will first need to investigate how much time he or she has to initiate a lawsuit (if the deadline has not already lapsed).

The other most common mistake made is calling a non-ERISA lawyer, such as one practicing primarily in personal injury or other labor and employment matters. ERISA cases are unique, and based upon highly technical statutes, regulations and court opinions. Successful navigation of a disability claim or claim for health benefits requires a lawyer intimately familiar with ERISA law, knowledgeable about what information to obtain and submit to the administrator and how to do so, and knowledgeable about the likelihood of success in court in light of the internal claims file and the claims administrator's denial letter (so the insurer knows you are on a level playing field with it).

The best course of action for a participant in a disability plan or health insurance plan making a claim for benefits due is to call an experienced ERISA lawyer before making the claim. Some offices will enter into a contingent arrangement, whereby you agree in advance to only engage the person upon a denial of benefits by the administrator. This saves you the attorney fees if you are successful in your initial claim, and prevents the loss of any time during that valuable 60-day window to obtain all other necessary documentation and appeal the denial. If you need to submit a claim for health benefits or disability benefits, call such an ERISA lawyer first and inquire about an engagement contingent upon being denied benefits.